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Smartphone Privacy Rights

  • Posted by: Ashling Soares

In today’s world, smartphone privacy has become a hot-button issue. Technology as a whole has dramatically affected an individual’s right to privacy, freedom from unlawful search and seizure, and freedom from self-incrimination. Case law in this area continues to develop, as courts rule on new issues as they arise. The arrival of smartphones has led to countless legal battles over law enforcement’s right to access these devices, particularly when they password-protected.

Recent Cases Involving Smartphone Privacy

Recently, a Circuit Judge in Fort Lauderdale, Florida sentenced a criminal defendant, Christopher Wheeler, to jail for 180 days or until he gives police his iPhone passcode. The judge had issued a warrant for the search of Wheeler’s phone for evidence of child abuse. Pursuant to the warrant, police officers asked Wheeler for his iPhone passcode. When the passcode he provided failed to unlock the phone, the prosecutor asked Judge Michael Rothschild to hold him in contempt, and succeeded. Wheeler was taken into custody, despite his insistence that he had given the police the correct code.

Coincidentally, a defendant in court last week in Miami prevailed under similar circumstances. Wesley Victor and his girlfriend, Hencha Voigt, charged with extorting a social media celebrity over stolen sex videos, were ordered by a judge to produce their smartphone passcodes. Victor failed to do so, claiming that he forgot the code. Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his passcode, more than 10 months after his initial arrest, and therefore declined to hold him in contempt of court. Voigt did give the police a passcode to her iPhone, but it apparently did not work. The judge will decide whether to hold her in contempt when she appears in court this week.

What Do These Rulings Mean for Smartphone Privacy?

These seemingly contradictory rulings, issued in the same state and in the same week, demonstrate the friction among lower courts regarding the issue of smartphone privacy. There is some legal precedent in Florida establishing the authority to compel criminal defendants to provide their passcodes, but it is muddled with controversy. Last year, a criminal defendant in Florida refused to turn over his passcode to law enforcement, and when faced with contempt, argued that compelling him to turn over the code would go against the Supreme Court’s ruling in Doe v. United States. In Doe, the Supreme Court held that a person can be ordered to hand over the key to a locked box, but cannot be compelled to recite the combination to a safe. The defendant argued that the ruling in Doe applied to his case because a smartphone’s passcode is analogous to a combination to a safe. The trial judge agreed, refusing to hold the defendant in contempt, but the Florida District Court of Appeals reversed the decision. The Court stated, “We question whether identifying the key which will open the strongbox – such that the key is surrendered – is, in fact, distinct from telling an officer the combination… More importantly, we question the continuing viability of any distinction as technology advances.” So, until the Florida Supreme Court or U.S. Supreme Court steps in to resolve these ambiguities, Floridians will have to give their iPhone passcodes to the police or end up behind bars.

If you have been arrested or are under police investigation, contact Ashling Soares Law today at 203.529.5115, or by email at info@ashlingsoareslaw.com.

Author: Ashling Soares

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